LARRY HOLLOWAY VS. TOWNSHIP OF JACKSON (L-0819-14, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2963-16T4

LARRY HOLLOWAY,

Plaintiff-Appellant,

v.

TOWNSHIP OF JACKSON; and
TOWNSHIP OF JACKSON ZONING
BOARD OF ADJUSTMENT,

Defendants-Respondents.
_____________________________________________

Argued June 28, 2018 – Decided July 16, 2018

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-0819-
14.

Peter H. Wegener argued the cause for
appellant (Bathgate, Wegener & Wolf, PC,
attorneys; Peter H. Wegener, on the briefs).

Robin La Bue argued the cause for respondent
Township of Jackson (Gilmore & Monahan, PA,
attorneys; Robin La Bue, on the brief).

Sean D. Gertner argued the cause for
respondent Township of Jackson Zoning Board
of Adjustment (Gertner & Gertner, LLC,
attorneys; Sean D. Gertner, on the brief).
PER CURIAM

Plaintiff Larry Holloway appeals from an order entered by the

Law Division on February 2, 2017, which rejected his challenge to

the validity of a zoning ordinance adopted by the Township of

Jackson (Township), and affirmed the partial denial by the

Township's Zoning Board of Adjustment (Board) of his variance

application. We affirm.

I.

Plaintiff is the owner of approximately 17.4 acres of land

in the Township. Plaintiff has owned the property for more than

twenty-one years. Prior to 2001, the property was placed in the

R-1 zone, in which one residential unit per acre is permitted. In

2001, the Township amended the zoning ordinance and placed

plaintiff's property in the R-3 zone, where one residential unit

per three acres is permitted.

It is undisputed that between 1986 and 2002, properties in

the area surrounding plaintiff's property were either developed

in conformity with the previous R-1 density standards or the

standards for the R-40 zone, in which residential lots of 40,000

square feet (slightly less than one acre) are permitted. According

to plaintiff, development of nearby tracts was constrained by

certain environmental regulations.

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 In 2013, plaintiff applied to the Board for a density variance

to permit the development of his property with thirteen residential

lots, plus one additional lot for storm water management. The

Township's R-3 zoning restrictions only permit five residential

lots on plaintiff's property. The density and certain access issues

were to be addressed separately.

On November 6 and December 18, 2013, the Board conducted a

public hearing on the density issues. On February 5, 2014, the

Board adopted a resolution, which denied plaintiff's application

for thirteen residential lots and one drainage lot, but allowed

plaintiff to develop the property with seven residential lots.

Thereafter, plaintiff filed a complaint in the trial court

seeking a determination that the application of R-3 zoning

restrictions to his property was invalid. He also sought a judgment

reversing the Board's partial denial of his application for a

density variance.

The trial court filed a written opinion finding that as

applied to plaintiff's property, the ordinance is valid. The court

also found that the Board had properly exercised its discretion

by granting plaintiff's variance request in part. The court

concluded the Board's decision was not arbitrary, capricious, or

unreasonable. The court memorialized its opinion in an order dated

February 2, 2017. This appeal followed.

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 II.

On appeal, plaintiff argues the trial court erred by finding

that the density restrictions for the Township's R-3 zone are

valid as applied to his property. We disagree.

Municipal ordinances are presumed to be valid, and the

presumption of validity may not be overcome unless the ordinance

is "clearly arbitrary, capricious or unreasonable, or plainly

contrary to fundamental principles of zoning or the [zoning]

statute." Riggs v. Long Beach Twp., 109 N.J. 601, 610-11 (1988)

(quoting Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335,

343 (1973)). The party challenging the ordinance "bears the burden

of overcoming the presumption." Id. at 611 (citing Ward v.

Montgomery Twp., 28 N.J. 529, 539 (1959); La Rue v. East Brunswick,

68 N.J. Super. 435, 454 (App. Div. 1961)).

"Courts should not question the wisdom of an ordinance, and

if the ordinance is debatable, it should be upheld." Ibid. (citing

Bow & Arrow Manor, 63 N.J. at 343). Although the court's role in

reviewing the validity of an ordinance is "circumscribed," the

court may declare a zoning ordinance invalid if it does not meet

certain criteria. Ibid. (citing Taxpayer Ass'n of Weymouth Twp.

v. Weymouth Twp., 80 N.J. 6, 21 (1976)).

The zoning ordinance must advance one of the purposes of the

Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Ibid.

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(citing Weymouth Twp., 80 N.J. at 21). The ordinance must be

"substantially consistent" with the land use and housing elements

of the municipality's master plan, unless the statutory

requirements are otherwise satisfied. Ibid. The ordinance also

must comply with the constitutional limits on the zoning power.

Ibid. Moreover, the ordinance must be adopted in accordance with

applicable procedural requirements. Id. at 612 (citations

omitted).

In its opinion, the trial court found that plaintiff failed

to overcome the ordinance's presumption of validity. The court

noted that under N.J.S.A. 40:55D-2, a municipality may enact a

zoning ordinance:

a. [t]o encourage municipal action to guide
the appropriate use or development of all
lands in this State, in a manner which will
promote the public health, safety, morals, and
general welfare;

. . . .

c. [t]o provide adequate light, air and open
space;

. . . .

e. [t]o promote the establishment of
appropriate population densities and
concentrations that will contribute to the
well-being of persons, neighborhoods,
communities, and regions and preservation of
the environment;

. . . .

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 g. [t]o provide sufficient space in
appropriate locations for a variety of
agricultural, residential, recreational,
commercial and industrial uses and open space,
both public and private, according to their
respective environmental requirements in
order to meet the needs of all New Jersey
citizens;

. . . .

j. [t]o promote the conservation of historic
sites and districts, open space, energy
resources and valuable natural resources in
the State and to prevent urban sprawl and
degradation of the environment through
improper use of land;

. . . .

p. [t]o enable municipalities the flexibility
to offer alternatives to traditional
development, through the use of equitable and
effective planning tools including
clustering, transferring development rights,
and lot-size averaging in order to concentrate
development in areas where growth can best be
accommodated and maximized while preserving
agricultural lands, open space, and historic
sites . . . .

The court found the Township changed the density restrictions

in the subject area to achieve a "better balance" of residential,

commercial, and industrial development. The court determined that

a governing body has the discretion to reduce residential densities

in an effort to direct commercial or industrial investments. The

record supports the trial court's determination that the ordinance

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advances one or more of the objectives set forth in N.J.S.A.

40:55D-2.

Plaintiff argues, however, that the purpose of the density

change was to protect the environment and to discourage development

in flood hazard and wetland areas, areas with soils having poor

drainage characteristics, and environmentally-sensitive areas.

Plaintiff contends his property does not present any of these

concerns.

However, plaintiff did not present any evidence in the trial

court showing that its property does not have the same or similar

environmental constraints as other affected properties. Notably,

in its 2001 master plan, the Township did not state that every

parcel affected by the density change had environmental

constraints that required the downsizing.

Moreover, the zoning change was not driven solely by the need

to protect the environment. The change was adopted in response to

the rapid residential development of the municipality. The change

also was adopted to create more open space, achieve a better

balance of residential, commercial, and industrial development,

and establish appropriate population densities. As the trial court

recognized, decreasing the level of residential development in the

areas affected by the change advances these goals, which are

permissible objectives under the MLUL.

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 In support of his argument that application of the density

change to his property is arbitrary and unreasonable, plaintiff

relies upon Pheasant Bridge Corp. v. Township of Warren, 169 N.J.

282 (1999). In that case, the plaintiff purchased land which was

zoned to permit single-family homes on lots of at least one-and-

one-half acres. Id. at 286. The municipality changed the zoning

ordinance and increased the minimum lot size to six acres. Id. at

287. The plaintiff challenged the ordinance, and the trial court

found that the increase in the minimum lot size was justified by

a "combination of environmental factors including flood plain,

steep slopes, seasonable high water, and wetlands" throughout the

zone. Id. at 288.

We held the ordinance was facially valid, but we remanded the

matter to the trial court to determine whether application of the

ordinance to the plaintiff's property resulted in an uncompensated

taking of the plaintiff's property. Ibid. The Supreme Court

ultimately held that the application of the ordinance was

arbitrary, capricious, and unreasonable because the environmental

concerns that justified passage of the zoning change did not apply

to the plaintiff's property. Id. at 292-93.

Plaintiff's reliance upon Pheasant Bridge Corp. is misplaced.

As stated previously, the Township's zoning change was not based

solely upon environmental constraints or concerns. The zoning

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change also was adopted to address the rapid residential

development of the Township; create more open space; and achieve

a better balance of residential, commercial, and industrial

development. Therefore, application of the zoning change to

plaintiff's property was not arbitrary, capricious, or

unreasonable.

Plaintiff further argues for the first time on appeal that

as a result of the "grandfather clause" that the Township adopted

in 2009, the density provisions of the zoning ordinance is

arbitrary, discriminatory, and violates the uniformity requirement

of N.J.S.A. 40:55D-62. The Township's Code states in relevant part

that:

Any structure conforming as to use in Zones
R-2, R-3 or R-5 that has received a
certificate of occupancy or building permit
or a structure conforming on a lot that has
received preliminary subdivision approval as
of the effective date of this Ordinance shall
remain conforming under the regulations
existing as of the date of such certificate
of occupancy, building permit or approval.

[Twp. of Jackson, N.J., Code § 244-46(E).]

We will not address an issue raised for the first time on

appeal, unless the issue pertains to the trial court's jurisdiction

or involves a matter of great public concern. Neider v. Royal

Indemn. Ins. Co., 62 N.J. 229, 234 (1973). The claim that the

relevant provisions of the Township's ordinance violate the MLUL's

9 A-2963-16T4
conformity requirement does not involve the court's jurisdiction

and it is not a matter of general public interest. Therefore, we

will not address this issue.

III.

Plaintiff further argues that the Board's decision to deny

in part his variance application is arbitrary, capricious, and

unreasonable.

We note initially that because of their "peculiar knowledge

of local conditions," zoning boards "must be allowed wide latitude

in the exercise of delegated discretion." Price v. Himeji, LLC,

214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45

N.J. 268, 296 (1965)). The decisions of zoning boards "enjoy a

presumption of validity, and a court may not substitute its

judgment for that of the board unless there has been a clear abuse

of discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd.

of Adjustment, 172 N.J. 75, 81 (2002)). The party challenging a

zoning board's decision must show that it was "arbitrary,

capricious, or unreasonable." Ibid. (quoting Kramer, 45 N.J. at

296).

Here, plaintiff sought a variance under N.J.S.A. 40:55D-

70(d)(5), which authorizes a zoning board "[i]n particular cases

for special reasons" to grant a variance allowing an increase in

the "permitted density" under the zoning ordinance. To establish

10 A-2963-16T4
"special reasons" for a density variance, the so-called "positive

criteria," the applicant must show "the site will accommodate the

problems associated with [a greater density] than permitted by the

ordinance." Grubbs v. Slothower, 389 N.J. Super. 377, 389 (App.

Div. 2007) (alteration in original) (quoting Randolph Town Ctr.

Assocs. v. Twp. of Randolph, 324 N.J. Super. 412, 417 (App. Div.

1999)). The applicant is required to establish "that despite the

proposed increase in density above the zone's restrictions," the

project will nevertheless serve "one or more of the purposes of

zoning and was consistent with the overall goals of the MLUL."

Ibid.

In addition, the applicant must establish the so-called

"negative criteria," which requires a showing that the variance

"can be granted without substantial detriment to the public good

and will not substantially impair the intent and the purpose of

the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. The party

seeking the variance must "demonstrate that the increase in density

would not have a more detrimental [e]ffect on the neighborhood

than construction of the project in a manner consistent with the

zone's restrictions." Grubbs, 389 N.J. Super. at 390.

In this matter, the Board found that plaintiff had satisfied

the positive and negative criteria for issuance of a density

variance for seven residential lots. At the public hearing,

11 A-2963-16T4
plaintiff presented testimony from an engineer, who opined that

the soils on-site are consistent with the soils of the surrounding

developed lots, and that drainage is good and suitable for

development. Plaintiff also indicated that he would utilize

advanced state-of-the art septic systems, which the Township's

engineer had endorsed. The Board determined, however, that a

variance should only be granted for seven residential lots.

On appeal, plaintiff argues that the Board essentially

acknowledged that he had established the positive and negative

criteria for the development of thirteen residential lots and the

additional lot for storm water management. We disagree. The Board

expressly found that plaintiff had satisfied the positive and

negative criteria for a density variance only with regard to an

increase in density from five to seven lots. The Board never found

that plaintiff satisfied the positive and negative criteria for

thirteen residential lots and a lot for drainage.

Plaintiff further argues that the Board improperly denied his

application for thirteen residential lots based in part on access

issues, which were severed for further review. He also contends

there is nothing in the record to support the Board's finding that

the property cannot handle the increased density he has proposed.

Again, we disagree.

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 The record shows that plaintiff gains access to his property

by means of a twenty-five-foot-wide unimproved dirt and gravel

path known as Cerrina Road. In a separate action, plaintiff sought

a declaration that the path was a public road. The trial court in

that case found that the path was not a dedicated public road, but

rather an unimproved access easement. We affirmed the trial court's

determination. Holloway v. McManus, No. A-4804-15 (App. Div. Sept.

11, 2017) (slip op. at 2).

Although further review of the access issues was

contemplated, that did not preclude the Board from considering

access in deciding whether a density variance should issue allowing

thirteen residential lots on plaintiff's property. The Board found

that the unimproved private access easement would not support the

number of trips that would be generated by plaintiff's proposed

development.

In its decision, the trial court determined that the record

supported the Board's findings that plaintiff had met the positive

and negative criteria for a density variance allowing seven

residential lots on plaintiff's property. The court wrote that the

Board's decision was reasonably based in part upon the fact that

the land-locked parcel was accessible only by a private right of

way, "which if developed would not meet the full development

standards for a publically dedicated roadway." The court found

13 A-2963-16T4
that the Board had properly exercised its discretion in granting

plaintiff's application in part. There is sufficient evidence in

the record to support the court's findings.

Affirmed.

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